Kanade, J. - The petitioner original accused was prosecuted under section 3(a) of the Railway Property (Unlawful Fossession) Act, 1966, having been found in possession of battery connections belonging to the railways, on August 14, 1974 at Matunga Workshop. The said case was numbered as 255/S of 1974. The prosecution led the evidence of one Nasaruddln Rakshak attached to Railway Protection Force, Post Matunga. In his evidence the said' witness stated that the property seized from the accused had no specific marks indicating that the property belonged to the railways. No further evidence was led by the prosecution and the learned Magistrate on the basis of the said evidence discharged the accused on June 25, 1976.

2. It is thereafter criminal case bearing Case No. 115/8 of 1977 was filed on the same facts. No leave was obtained by the prosecution to file a fresh complaint. It further appears that no objection was taken regarding the maintainability of the second complaint. However at the final hearing a point was raised before the learned Magistrate that the second complaint was not maintainable in view of the provisions of section 300 of the Code of Criminal Procedure. That contention was negatived by the learned Magistrate and on appreciation of evidence the learned Magistrate by his judgment and order dated September 30, 1978 was pleased to convict the petitioner accused under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to pay a fine of3Rs. 500/-. In default of payment of fine the accused was ordered to suffer R.I: for two months.

3. Feeling aggrieved by the said order of conviction and sentence, the petitioner preferred an appeal being Criminal Appeal No. 705 of 1978 to the Court of Sessions for Greater Bombay. The appeal was barred by' limitation. The learned Additional Sessions Judge by his judgment and order dated October 19, 1982 dismissed the appeal holding that the appeal was time barred. However, on the merits, it is held that the second complaint filed by the prosecution was not maintainable. It is that judgment and order that it is challenged in this revision application.

4. Shri H. H. Keshwani, the learned Counsel appearing in support of this revision application contended that though the appeal was filed beyond a period of limitation and inspite of the note by the office that the appeal was' barred being beyond the period of limitation, the appeal was admitted by the learned Sessions Judge and the said order of admission should be treated as an order condoning the delay in filing the appeal. There is no force in this condition. A substantial right is accrued to the respondent in that the appeal was time barred. At the final hearing of the appeal the contending respondent will have a right to contend that the appeal was time barred and, therefore, liable to be dismissed: Even assuming that at the time of admission the learned Judge, had condoned the delay ex parte, an application should have been filed explaining the delay in filing the appeal. But such an application was not filed by the petitioner in the Appeal Court. The learned Sessions Judge observed that by virtue of section 5 of the Limitation Act, the delay had to be condoned at the time of admission and, therefore, it is beyond his jurisdiction to condone the delay at the stage of hearing of the appeal. It is further observed that in case where the delay was not condoned when the appeal was admitted, I am not able to condone the delay at the stage of hearing. This observation made by the learned Judge is seriously challenged by the learned Counsel of the petitioner.

5. Section 5 of the Limitation Act enables an appellant to make an application for condonation of delay if the appeal is presented after the prescribed period of limitation. If at the time of instituting an appeal an application is not made under section 5 of the Limitation Act, it would not debar the appellant to make such an application during t